Pending COVID-19 Workers’ Compensation Legislation
Ohio employers are addressing a multitude of issues arising as the result of the COVID-19 epidemic. On the workers’ compensation front, several pieces of legislation which would make it easier for employees to file claims for COVID-19 have been introduced into the Ohio House of Representatives.
Most notably, Ohio House Bill 573 would create a rebuttable presumption (for any employee who was required to work outside of their home subsequent to Governor DeWine’s emergency declaration on March 9, 2020) that COVID-19 was contracted in the course of and arising out of employment. Under the bill, the presumption would only apply to claims arising during the emergency declared by Governor DeWine and the fourteen-day period thereafter. Two other bills, House Bills 571 and 605, propose the same presumption, but are limited to first responders/emergency medical workers or to food service workers, respectively.
Employers should keep in mind that no votes have been taken on any of these bills, and even if passed by the House, the bills would still need to be approved by the Ohio Senate and be signed by the Governor.
Under current law, in order to establish a claim for COVID-19, an employee would need to prove all elements of the following three factor test to establish a compensable occupational disease:
- The disease was contracted in the course of their employment;
- The disease is peculiar to the claimant’s employment by its causes and characteristics of its manifestation, or the conditions of the employment result in a hazard which distinguishes the employment from employment generally; and
- The employment creates a risk of contracting the disease in a greater degree and in a different manner than employment generally.
In today’s climate, it would be difficult for an employee to conclusively establish that they contracted COVID-19 at work. Even in the event that an employee was able to establish that they contracted the disease at work, they would still need to establish that their employment somehow placed them at an increased risk than the general working public.
However, employers should continue to take all possible precautions to minimize employee exposure by promoting frequent and thorough handwashing and providing hand sanitizer containing at least 60 percent alcohol; routinely cleaning frequently touched workplace surfaces and providing disposable wipes for employees to wipe down commonly used surfaces; providing masks if possible; and encouraging employees to stay home if they are sick.
Allow employees to work from home, if possible, and treat requests from employees with disabilities that put them at risk for COVID-19 complications as you would a request for any other reasonable accommodation. Employers may request that employees who have tested positive for COVID-19 notify their employer. However, employers need to make sure to maintain strict confidentiality as required under the ADA. Similar confidentiality should be maintained by employers who take employees’ temperatures. As usual, contact RBS if you have any questions.